858 N.W.2d 901
N.D.2015Background
- Attorney Runge was admonished for allegedly violating N.D.R. Prof. Conduct 1.14 in revoking a power of attorney for Norman Franz who had limited decision-making capacity.
- Franz owned a durable power of attorney naming Pfeifer as attorney-in-fact for finances; Pfeifer had no medical decision authority under the POA.
- Franz executed an “emergency care statement” in 2012 indicating incapacity for medical decisions, signed by Pfeifer as “responsible party.”
- Runge prepared a revocation of the POA in April 2013 after meetings with Franz and a third party, and presented it at the nursing home for Franz to sign.
- Franz subsequently left the nursing home; Pfeifer’s role as the medical decision authority was disputed; there was no guardianship or conservatorship established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Runge violated 1.14 by revoking the POA without consulting Franz’s representative. | Runge’s lack of consultation violated 1.14. | Runge reasonably determined capacity and acted within professional judgment. | No clear violation; complaint dismissed. |
| Whether evidence establishes Franz had limited capacity in April 2013. | Franz was incapacitated, requiring protective action. | Record shows Franz could articulate reasons and understand consequences. | Capacity found within range of professional judgment; no violation. |
Key Cases Cited
- Toth v. Disciplinary Bd., 1997 ND 75 (ND 1997) (de novo review; clear and convincing standard for 1.14 violations)
- Kuhn, 2010 ND 127 (ND 2010) (guardian/conservator context; not controlling where no guardianship; POA differs)
- Estate of Littlejohn, 2005 ND 113 (ND 2005) (power of attorney authority and revocation relevance)
- In re Disciplinary Action Against Hann, 2012 ND 160 (ND 2012) (ABA model rule interpretation guidance for 1.14)
- Disciplinary Action Against McKechnie, 2003 ND 22 (ND 2003) (minimum discipline standards in professional conduct)